U.S. seeks new Kiyemba I ruling

Posted Mon, March 22nd, 2010 4:33 pm by Lyle Denniston

The Obama Administration, reacting to the Supreme Court’s action earlier this month in a key detainee case, urged the D.C. Circuit Court on Monday to put back into effect its ruling that Chinese Muslim Uighurs at Guantanamo Bay have no right to be transferred to live — even temporarily — in the U.S. In a new filing in the Circuit Court, it opposed a plea by seven Uighurs that the case be sent back to a District Court judge to assemble new facts on the current prospects of the prisoners to leave Guantanamo for resettlement in another country. The case is Kiyemba v. Obama (Circuit docket 08-5424, Supreme Court docket 08-1234), sometimes known as “Kiyemba I.”

This development in the Circuit Court was the second of the day affecting the Uighur prisoners at Guantanamo Bay. This morning, the Supreme Court denied review of a second case by the same name and known as “Kiyemba II” (Supreme Court docket 09-581), dealing with related issues on judicial authority to deal with detainees’ legal fate. A blog post on that earlier action by the Justices is here.

Both of the Kiyemba cases are sequels to the Supreme Court’s 2008 ruling in Boumediene v. Bush, establishing a constitutional right for Guantanamo detainees to challenge their continued confinement. In Boumediene, the Supreme Court left it to lower courts, in the first instance, to work out the details of those challenges. In Kiyemba I, the Circuit Court overturned a habeas court judge’s ruling that the Uighurs should be brought to the U.S. in order to carry out their release from Guantanamo, since the government no longer considers them to be dangerous. The Supreme Court agreed to review that decision, but then, on March 1, sent the case back to the Circuit Court to examine new legal developments that might affect the Uighurs’ legal status. That is the case in which the Administration made a new plea Monday to reinstate the prior decision, which had been vacated by the Supreme Court’s order March 1.

In Kiyemba II, the Circuit Court ruled that federal habeas judges have no authority to require the government to give detainees any advance notice before it transfers them out of Guantanamo, even when detainees fear that they would suffer harm in the country to which they might be sent. That ruling in effect took away most, if not all, of federal judges’ authority to monitor the movement of Guantanamo prisoners. And that is the ruling the Supreme Court left intact earlier Monday.

It is now up to the Circuit Court, in both cases, to decide what to do next. In Kiyemba I, the detainees want a new factual review in the District Court, arguing that the facts are not sufficiently clear for a final ruling on how and when they are to be released from Guantanamo. The Administration, by contrast, argued Monday that the Circuit Court should reinstate its prior ruling, and simply add new facts which, its filing argued, are not genuinely in dispute: all of the Uighurs have had or now have offers to be resettled somewhere other than the U.S. and their homeland of China, where they fear persecution, or worse. In Kiyemba II, the Circuit Court need only issue its final mandate putting into effect its ruling that federal judges cannot “second-guess” transfer decisions that the Pentagon makes about Guantanamo prisoners. That decision was not disturbed by the Supreme Court.

The Administration’s new plea to the Circuit Court in Kiyemba I argued: “If an alien who has not been offered resettlement elsewhere has no right to be brought into the United States for release outside the framework of the immigration laws, as this [Circuit] Court held [in February last year], then a fortiori an alien who has been offered resettlement opportunities but turned them down has no such right.”

And, it added, the government’s success so far in securing places for resettlement “shows that it never was the case that a judicial order requiring that [the Uighurs] be brought to the United States and released here was the only possible way for [them] to leave U.S. custody at Guantanamo Bay….Transfer issues are matters for the political branches….There is no need for further proceedings in the District Court.”

Efforts to resettle the Uighurs to other countries, the new filing argued, are “a top diplomatic primary” of the special envoy named by the government to handle relocation negotiations. Of the seven Uighurs remaining at Guantanamo, it said, two are expected to be sent to Switzerland “in the very near future.” For the other five, it added, the government continues its efforts to identify a country to which they can be sent. Efforts to resettle other prisoners who have won release orders in court also have succeeded, it noted.

“The writ of habeas corpus is effective at Guantanamo Bay,” it summed up.

In arguing against any further fact-gathering in the District Court, the new filing said that this “would disrupt diplomatic negotiations regarding resettlement of Guantanamo detainees….Adjudication of these issues would undermine the government’s ability to speak with one voice in its foreign relations…”

Presumably, the Uighurs’ lawyers will file a reply before the Circuit Court decides on the next step in “Kiyemba I.”

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.